Court action over moves on Wheatley Wyndford flats demolition

They have received legal opinion supporting the bid which raises concerns that a failure to carry out an impact assessment by Glasgow City Council or the Scottish Government was both irrational and unlawful.

A "residual risk" document which was sent to Glasgow City Council to support the £73m demolition plans uncovered a series of serious potential dangers, including damage to neighbouring properties and the prospect of claims.

According to construction experts residual risk refers to what remains after efforts to identify and eliminate dangers have been made through controls.

Campaigners said that it could be the beginning of the end of the plans saying the dangers were "unacceptable".

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Wheatley refers to the document marked as "residual risk" as a "standard risk assessment" which would allow contractors to put in place measures to "eliminate or mitigate" the risks identified and that campaigners were "scaremongering". They say the document was mistitled.

Nick Durie, of the Wyndford Residents Union, said the legal aid nod has allowed the campaigners to go ahead with court action.

He believes that both the council and the Scottish Government acted unlawfully by failing to ensure there was impact assessment.

He said the Scottish Government should have called in the plan after residents called for their intervention while the impact assessment was blocked.

"We have now been granted legal aid which allows us to go ahead with this action," said Mr Durie who says the demolition is "too risky" and that it is not too late for it to be rescinded.

Scottish ministers can call-in any planning application at any time as a safeguard against inappropriate development being permitted, adding a further layer of scrutiny. They usually intervene where a matter of genuine national interest may be at stake.

The blocks have been earmarked for demolition by the housing association which wants to replace the existing 600 social housing units – only around 10% of which are still occupied – with 300 new homes.

Wheatley say the project will replace the "dated and unpopular blocks" with affordable family homes, 255 of which will be for social rent.

The residents union and the Scottish Tenants Organisation (STO) believe the flats can be safely retained and retrofitted. But Wheatley say that it is too difficult and expensive.

Counsel for campaigners opposing the plans, which is understood to have helped them get legal aid, states that the city council erred in law by saying that the environmental impact assessment was not required before demolition.

They believe that it is as breach of the Environmental Impact Assessment (Scotland) Regulations 2017 (EIA) established to protect people's surroundings by ensuring that councils are fully aware of any significant effects that a proposal may have.

The legal representative stated that the council was wrong to say that the likely effects on the environment can be addressed through the planning permission 'prior approval' process and that decison were a "form of illegality".

And the advocate states that the council wrongly believes that an environmental impact assessment is not required for the development of land unless it was on a significantly greater scale than the previous land use, or the types of impacts are of a markedly different nature, or there is a high level of contamination.

Jonathan Deans states: "In my opinion, the decision is irrational. It is clear... that Glasgow City Council do recognise that the proposed demolition would likely have a significant effect on the environment. Their conclusion that it would not appears to be irrational..."

The STO which is supporting the court action said: "Concluding there is no need for an environmental impact assessment with regard to the proposed mass demolition of the four tower blocks is in fact unlawful in such a proposed mass demolition event would have a detrimental impact on the lives of local residents, their homes and possible contamination of the river Kelvin.

"It is absolutely necessary for a major environmental impact assessment to be carried out.

"The best solution for all parties would be to retrofit the existing tower blocks so that homeless families and refugees from Ukraine are housed there and this would help solve the housing and homeless emergency in Glasgow."

The campaigners' advocate said that various unanswered questions in relation to the council decision meant proper consideration had not been given to the issues.

A screening opinion filled out by the council provided what was a "telling answer.".

In response to a question asking if there will be the potential for a significant environmental impact as a result of the proposal, the council answered: "Yes, potentially - able to be addressed through the prior approval application."

When asked if there would be a large change in environmental conditions, the council gave the same answer.

Asked if there was a high probability of the effect occurring the council answered: "Yes."

When asked if the the developer detailed proposed mitigation measures to prevent significant adverse effects on the environment, the council answered: "No."

Asked if the council considered that appropriate mitigation measures can be satisfactorily delivered and maintained through a planning permission regardless of whether or not the development is a development covered by an environmental impact assessment the council responded: “Yes, potentially - able to be addressed through the prior approval application.”

"In my opinion, it cannot be the case that a planning authority can state that there is a likelihood of a significant effect on the environment but that this can be dealt with in the planning permission process instead of by way of an environmental impact assessment," said the advocate.

"In considering that the environmental impact can be dealt with through the planning permission process, Glasgow City Council has based their decision on an irrelevant consideration. This is a form of illegality.

"In my opinion, there are strong grounds for judicial review proceedings on the basis of these errors in law."

He said the prospects of success were rated as seven out of ten on the Scottish Legal Aid Board scale which rates prospects from one which means almost non-existent to 10 meaning it is certain of success.

The risk analysis prepared for Wheatley by G3 Consulting Engineers and submitted in September consists of a map of the proposed demolition area with red triangles marking spots where there are "site specific risks".

It stated that there are water mains, electric cables, gas and BT cables present within the site boundary and a "risk of electrocution, explosion and damage to plant/equipment."

The document also warned that demolition works are in "close proximity to nearby buildings" and a "risk of damage and potential claims from neighbouring properties".

Buildings referenced include the Maryhill Hub community facility, residential properties, a central heating plant and an adjacent church, understood to be St Gregory's Catholic Church.

The document also references risks of injury "by mobile plant" and risks of accidents with vehicles and references a "risk of contaminating a water course", understood to be the River Kelvin.

It lists risk associated with telephone poles and overhead cables and an associated danger of "damage and disruption to services".

The Project Management Institute's flagship publication the PMBOK Guide defines residual risks as those "that are expected to remain after the planned response of risk has been taken, as well as well as those that have been deliberately accepted.”

Campaigners have been attempting to save the flats using various routes including achieving listed status and by occupation.

Historic Environment Scotland, however, said it has assessed the flats and they do not meet the criteria.

Opponents of demolition had pinned their hopes on the heritage body to intervene decisively but HES found that later alterations had undermined the authenticity of the structures.

That is despite HES's previous incarnation Historic Scotland previously finding that the historic estate, set within the grounds of a former army barracks, 'was of some note'.

Wyndford estate was designed by Ernest Buteux, chief technical officer for the Scottish Special Housing Association (SSHA) from 1959-78. He was thought to be influenced by the designs of Le Corbusier – the father of modern architecture. It was built on a 55 acre site at the old Maryhill barracks, was estimated to cost £4m.

The anti-demolition campaign is been backed by leading Scottish architects Alan Dunlop, Kate Macintosh and Malcolm Fraser.

Mr Dunlop described architect Ernest Buteux’s vision for Wyndford as embodying ‘the spirit of Le Corbusier’ and having ‘historic importance'.

Mr Fraser has said that vast amounts of carbon will be wasted if the tower blocks are demolished rather than refurbished.

Glasgow City Council said: "It would be inappropriate for us to comment on matters that are before the court."